Should We Care Whether or Not Supreme Court Nominee Elena Kagan Is Gay?

Should We Care Whether or Not Supreme Court Nominee Elena Kagan Is Gay?

Internet gossip and a photo have ignited debate about Supreme Court nominee Elena Kagan's sexual orientation. In the photo, she's playing baseball: So, is she or isn't she gay?

Last month the White House objected to a CBS News blog written by Ben Domenech, a former Bush administration staffer, who asserts Kagan is a lesbian. The Obama administration said emphatically that Kagan is heterosexual. However, the controversy escalated with Andrew Sullivan's post at The Atlantic's "Daily Dish," demanding proof that Kagan is not gay.

Others, like the women of ABC's The View and Benjamin Sarlin at The Daily Beast, have taken swings at the innuendo with queries, such as "Does Kagan's sexual orientation matter?" and -- given the Obama administration's definitive answer that she is not gay -- "Is the question fair?" and "Is it unethical for a journalist to slant a piece to suggest she is gay with no evidence?"

Furthermore, how could something as innocent and old as the photo in question be used to question a woman's sexual orientation?

"I think this is great. I think if you take it out of maybe the potential of them using this to say she should be coming out if she is gay, what does it mean if she is? I don't necessarily think that matters if she doesn't apply it to how she's going to form opinions on the bench."

Those who oppose same-sex marriage and support "don't ask, don't tell" might say it does matter, and some gay rights activists who support same-sex marriage and oppose "don't ask, don't tell" in the military may agree. However, Hasselbeck's co-host Whoopi Goldberg says in closing that the only thing that matters is that Kagan knows what she's doing.

Writing at Mother Jones, Stephanie Mencimer asks, "Why Do So Many People Think Elena Kagan Is Gay?" After listing observations about Kagan's appearance that might make gay rumors stick, she lays out at how gay spin about the nominee has been cultivated in the political jungle:

Monday, after the news leaked about Kagan's nomination, religious conservative groups took to the Internets with multiple calls for Kagan to out herself. Gordon James Klingenschmitt, a court-martialed military chaplain who now runs an anti-gay Web site, circulated a press release citing anonymous student reviews on Epinions as proof that Kagan is gay. Peter LaBarbera at Americans for Truth About Homosexuality blasted out a press release calling on Kagan to answer the question: "Are (or were) you a practicing homosexual?" He wrote, " ... in an era of ubiquitous pro-gay messages and pop culture celebration of homosexuality, it's ridiculous that Americans should be left guessing as to whether a Supreme Court nominee has a special, personal interest in homosexuality. Given the important homosexual-related issues coming before the Supreme Court, Kagan should say so if she has a personal interest in lesbianism."

"But it wasn't just homophobic right-wingers calling on Kagan to address her sexual orientation directly," continues Mencimer, and then she quotes Sullivan, who she says is openly gay.

Sullivan ends his "Daily Dish" post, "So Is She Gay?" with assumptions:

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

Mencimer counters that Obama would not be so stupid as to lie about something easily discovered. She cites the John Edwards adultery scandal to make her point and then argues that the rumors smack of misogyny:

But really, what powerful woman in Washington hasn't been accused of being a lesbian? ... Gossiping about the sexuality of Washington powerbrokers has become sort of a national pastime. But the stakes -— and the vitriol -— seem to go up substantially when powerful women crash the beltway frat party. And while Sullivan might think that sexual orientation has become as bland a biographical detail as Jewishness, the unfortunate truth is that, unlike him, most of those suggesting Kagan has something to hide aren't rooting for her to come out so she can advance the cause of gay rights. They just want to knock a powerful woman down a few notches.

BlogHer's Maria Niles did a thorough job of introducing us to Kagan earlier with a rich list of links to more information, but here is a video profile of the nominee from ABC's Nightline.

In addition, while political game players prefer to use Kagan's baseball photo to launch innuendo, some professional baseball players have analyzed her batting stance photo for signs of athletic skill.

And yet, an elephant remains in the room. When presidents nominate candidates for the Supreme Court, all kinds of questions arise: Is the person qualified? How does the person identify politically, left or right? Is he or she pro-life or pro-choice, and will the candidate's ethnicity, gender, or religious beliefs influence decisions? Will the nominee be an "activist judge"? So, do we have here only more political hacking, all of it based on not fact but Internet gossip and supposition, or is it fair, for whatever reason, to ask a potential justice, "Are you gay?"

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